Succession Planning for the Small Business Owner

THE COUNSELOR

Volume 2 • Issue 7 • July 2012

The Counselor is a monthly newsletter of Hallock & Hallock dedicated to providing useful information on estate planning and business planning issues. This month's issue will discuss succession planning for the small businesses owner. If you are interested in learning more about the ideas and processes in this newsletter, please contact us for an initial consultation.

“Small businesses,” that is, those that have less than 500 employees, comprise 99.9% of all businesses in the United States. The owners of these businesses will, someday, exit their businesses due to retirement, incapacity or death. However, most are so busy working that they don’t slow down and think about business succession and estate planning issues. That is one of the primary reasons that less than one-third of family businesses survive to the second generation; 65% of those fail to survive the second generation; and 90% of family businesses fail to survive the founder’s grandchildren. The owners of small businesses often have multiple advisors, but rarely are the advisors consulted as a team with coordinated input. The team approach, however, is what produces the best results.

Introduction

Too often a business owner is so busy “working the job” that he neglects “building the business.” A business owner may occasionally wonder if he can ever retire, who could possibly take over his business, if he can get retirement income without going out of business, and what would happen to his business (and family) should he prematurely die or become incapacitated, but most do not seriously think about these things until they are ready to retire. That’s when they realize they could have achieved better results if they had only done more to build their business and prepare for its succession. A solid advisory team can help the owner change focus from how much he is making today to the future rewards he can be building for his family and his retirement.

Two Concepts to Start the Process

Two tools that are often not used by business owners can be very helpful:

The Year-End Review: This lets the business owner see how the business has performed over the last 10-11 months, review business profitability, and see the tax situation for the year. Often a year-end review is used to consider ways to reduce taxes in the coming year. It also provides an opportunity to discuss future risk mitigation.

The Legal Audit: This is a review of all legal documents of the business, including organizational documents, employment agreements, leases, loan documents and guarantees, and buy/sell agreements. It provides another opportunity to look for tax savings and a way to identify potential gaps or liabilities.

Providing the data for these two reports and reviewing them with the advisory team will help force the owner to examine business growth and profitability and talk about continuity issues.

No one professional has all the answers, and diverse skills and talents are necessary for the best results. The team approach also minimizes time and costs. Members of the advisory team may include the accountant/CPA, financial planner, insurance advisor(s) (property, casualty, umbrella and life), investment advisor, business attorney, estate planning attorney, valuation specialist and a business broker if an imminent sale of the business is part of the strategy. All members of the advisory team should be involved so the planning can be coordinated. With a solid team in place the owner is ready to move forward with six steps to successful succession.

The Six Steps to a Successful Succession Plan

Step One: Identify Motivation and Goals

As Dr. Laurence J. Peter, the man who established the famous “Peter Principle,” said, “If you don't know where you're going, you will probably end up somewhere else.” In order for the business owner to avoid ending up “somewhere else,” he must establish goals for himself and his business. Learning what motivates the business owner (income, wealth, identity, challenge, stimulation, satisfaction and/or pride) will help the advisory team work better with him. Also, verbalizing goals will help clarify priorities, avoid quick fixes, identify a desired outcome, and focus energy on the most urgent concerns.

Typical goals might include:

Create and preserve the value of the business

Exchange that value for money with the least amount in taxes

Meet personal and family needs by providing security and continuity of the business in case of the owner’s premature departure

Leave a legacy

Give money to charity

Shift wealth to children

Reward key employees

Receive full value for the business

Keep the business (or sell it) at his/her exit

Take the business to the next level

Step Two: Value the Business

Most owners have no idea what their business is worth, but the value will be needed for a third party buyer if a sale is anticipated. In the meantime, knowing what the business is worth will help in projecting cash flow, estate and gift tax planning, knowing how much insurance to purchase for buy/sell agreements, compensation planning, knowing available collateral for financing, and retirement planning. It also allows the advisory team and the owner to monitor progress toward the owner’s stated objectives.

Step Three: Plan for Business Continuity

The business owner’s overall planning objective for what will happen when he retires, becomes incapacitated, dies or sells the business most often includes that the business will continue despite such an event. Most commonly, the business owner will want the business to survive with whoever he chooses to receive the value of his ownership interest. Likewise, if one owner “departs,” for whatever reasons, the remaining owner(s) usually will want to retain ownership and control and not to be in business with the departed owner’s creditors, surviving spouse and/or heirs

Universal client objectives are to preserve wealth and minimize taxes using both lifetime and death planning tools. Where a family business is involved, this requires integrating lifetime succession and business objectives with the estate plan. Estate planning thus becomes part of business planning.

Considerations for the business owner’s estate plan include the growth of non-business assets; how to be “fair” to children both inside and outside of the business; minimizing and having the cash to pay estate tax; asset protection during the owner’s life and for his heirs; probate avoidance; planning for long term health care costs; and sometimes special considerations, such as a child or parent with special needs.

Step Five: Grow and Protect Business Value

From the owner’s perspective, growing the business and protecting its value will maximize the amount realized on the sale of the business, protect assets from potential business and personal creditors, create the ability to sell the business, and can motivate and keep key employees and family members in the business.

Promoting its value will include increasing cash flow; developing operating systems (so that the system, not the owner, who will eventually be gone, becomes the solution); documenting sustainability of earnings (if the owner is taking all the cash out of the business, it will be harder to sell); improving company performance as measured by industry metrics; and paying down debt.

To grow the business and protect its value, it may be necessary to restructure the organization, solidify and diversify the customer base, implement strategies to grow the company, develop and protect proprietary technology, build a solid management team, and groom a successor.

It may also be worthwhile to examine and possibly change the corporate structure (S and C corporations, LLCs and partnerships). The advisory team can help the owner consider tax pros and cons, ease of operation and asset protection features of current and potential entities. An umbrella policy is often overlooked by business owners and is an inexpensive start toward asset protection of both business and personal assets.

Step Six: Ownership Transfer

The ability to sell and the value of the business are both affected by intrinsic factors (e.g., how the business has grown); extrinsic factors (e.g., the local and general state of the economy); and the effectiveness of the sale process.

There are only two basic types of ownership transfers - to those who are in the business and to outsiders. Each has special characteristics.

Sale to Outside Buyers (Third Parties): The benefits to the owner of a sale to an outside buyer can include cash at closing, no owner financing (which eliminates financial risk), no family succession issues and the speed with which the exit can occur. However, everything must come together just right to successfully complete the sale of a small business. Far more often than not (often as a consequence of failure to plan properly), no buyer can be found who is willing to pay the owner’s price. About 20% of businesses are offered for sale, but only one in four of those actually sells. The probability of effecting a successful sale changes with the size of the business. About a third of offered businesses with annual sales of $10 million or less sell, while about half of offered businesses with annual sales over $10 million sell.

Sale to Children or Key Employees: The owner’s succession objective may be selling the business to his children and/or key employees. This can motivate and help retain key employees and family involvement in the business. Money for that kind of sale usually has to come from the ongoing business, so planning is critical to help reduce risk of buyer default and to increase the amount of money received by the owner.

Conclusion

Depending on the health of the business and the objectives of the business owner, it can take several years of planning and action to implement a business succession plan and get the other planning in place. A forward thinking advisory team that initiates the planning process years before an anticipated succession event, monitors the progress, and helps keep the plan on track will provide a great service to the business owner, his family and his business.

This Newsletter is for informational purposes only and not for the purpose of providing legal advice. You should contact an attorney to obtain advice with respect to any particular issue or problem. Nothing herein creates an attorney-client relationship between Hallock & Hallock and the reader.